TITLE 16

Health and Safety

Safety

CHAPTER 66. FIRE PREVENTION

Subchapter I. State Fire Prevention Commission

§ 6601 Objectives.

The objective of the State Fire Prevention Commission, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices.

§ 6602 State Fire Prevention Commission — Appointment; qualifications; cause for removal; term of office; members to serve without compensation.

(a) The State Fire Prevention Commission shall consist of 7 persons who shall be qualified by experience and training to deal with the matters which are the responsibilities of the State Fire Prevention Commission. Three members of the State Fire Prevention Commission shall be appointed by the Governor and shall be representatives of industry from New Castle County, Kent County and Sussex County. Three members, 1 from each county, shall be members of paid or volunteer fire companies and shall be appointed by the Governor from a list of 3 names of members in good standing submitted by the Volunteer Firefighters' Association of the county in which a vacancy exists. The seventh member of the State Fire Prevention Commission shall be the immediate past President of the Delaware Volunteer Firefighters' Association and shall be appointed by the Governor.

(b) Members may be removed by the Governor for continued neglect of the duties required by this chapter, or for refusal to act, misconduct, incompetency, or other sufficient cause.

(c) Members of the State Fire Prevention Commission shall be appointed to serve for 6-year terms, but no member may be appointed to more than 2 successive full terms. Succeeding appointments shall be made, and any vacancy on the State Fire Prevention Commission shall be filled for the duration of the term, in the same manner as the prior appointment.

(d) Members shall serve without compensation but shall be reimbursed for their actual and necessary expenses incurred in the performance of their duties.

(e) No member of the State Fire Prevention Commission, while serving on the State Fire Prevention Commission, shall be an officer (president/chairperson, president-elect, vice president, secretary or treasurer) of any state or county volunteer firemen's association, including but not limited to, the Delaware Volunteer Firefighter's Association, or any professional or trade association, or union representing an industry or service regulated by the State Fire Prevention Commission.

(a) The State Fire Prevention Commission shall select a Chairperson and Vice Chairperson from among its members and shall hold regular meetings at least once a month. Special meetings may be called by the Chairperson, by the Vice Chairperson in the absence of the Chairperson, or by 3 members of the State Fire Prevention Commission.

(b) No business shall be transacted by the State Fire Prevention Commission in the absence of a quorum which shall be 4 members, 1 of which must be the Chairperson or Vice Chairperson.

(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act (Chapter 101 of Title 29) of this State.

a. Such regulations shall be in accordance with standard safe practice as embodied in widely recognized standards of good practice for fire prevention and fire protection and shall have the force and effect of law in the several counties, cities and political subdivisions of the State. Whenever such regulations and amendments require the issuance of permits or licenses, the State Fire Prevention Commission is authorized to issue such permits or licenses according to the provisions and schedules in § 6612 of this title. Such regulations and amendments shall not apply to existing installations, plants or equipment unless the State Fire Prevention Commission has duly found that the continuation thereof constitutes a hazard so inimicable to the public welfare and safety as to require correction; nor shall such regulations and amendments limit or prohibit the shipment, transportation, handling or storage incident to transportation of any explosive, combustible or other dangerous article in solid, liquid or gas form by rail, water or highway, when such articles are in conformity with regulations of the Interstate Commerce Commission; nor shall such regulations, insofar as they purport to prohibit the sale, purchase or domestic use of gasoline, kerosene or other fuel burning home appliances for heating or cooking apply to any person whose personal faith or belief prevents the use of any alternative heating or cooking appliance recommended by the State Fire Prevention Commission, the burden of proof is upon the person claiming relief from such regulation. In their interpretation and application the regulations promulgated under this chapter shall be held to be the minimum requirements for the safeguarding of life and property from the hazards of fire and explosion. Whenever the provisions of any other statute or local regulation are more stringent or impose higher standards than are required by any regulations promulgated under this chapter, such statute or local regulation shall govern, provided they are not inconsistent with the state Code and are not contrary to recognized standards and good engineering practices.

b. Promulgate regulations consistent with the following language: The State Fire Marshal shall require that all persons involved in the inspection and testing of water-based fire protection systems maintain current certification in the National Institute for Certification in Engineering Technologies (NICET II) "Inspection and Testing of Water-based Systems'' certification program or a substantially similar and equivalent course of instruction, as determined by the State Fire Marshal, as a condition of permit renewal after July 1, 2010.

c. Promulgate regulations consistent with the following language: The State Fire Marshal shall require that persons involved in the inspection and testing of water-based fire protection systems shall complete 16 contact hours of continuing education or similar course of instruction during each biennial period of renewal. Any and all continuing education requirements completed pursuant to paragraph (1)b. of this section may be used to meet the continuing education requirements as called for under this section.

(2) Appoint a person qualified by that person's previous training and experience in endeavors similar to those herein prescribed as State Fire Marshal.

(3) Appoint a person qualified by that person's previous training and experience in endeavors similar to those described herein as the State Fire School Director.

(4) Conduct hearings and issue orders in accordance with procedures established pursuant to this chapter and Chapter 101 of Title 29. Where such provisions conflict with this chapter, this chapter shall govern.

(5) Issue subpoenas for named respondents, witnesses, documents, physical evidence or any other source of evidence needed during the investigation of a complaint made under this chapter and/or for a public hearing on the complaint or for an appeal to the State Fire Prevention Commission from an order or decision of the State Fire Marshal. If the party or person subpoenaed fails to comply, the State Fire Prevention Commission may compel compliance with said subpoena by filing a motion to compel in the Superior Court which shall have jurisdiction. The Superior Court may order costs, attorney's fees and/or a civil fine not to exceed $1,000 if the motion to compel is granted.

(6) Acquire any real or personal property by purchase, gift or donation and have water rights.

(7) Make contracts and execute instruments necessary or convenient.

(8) Undertake by contract or contracts, or by its own agent and employees, and otherwise than by contract, any project or projects, and operate and maintain such projects.

(9) Accept grants of money or materials or property of any kind from a federal agency, private agency, county, city, town, corporation, partnership or individual upon such terms and conditions as the grantor may impose.

(10) Perform all acts and do all things necessary or convenient to carry out the power granted herein.

For the purpose of advising and make recommendations to the State Fire Prevention Commission in connection with the State Fire Prevention Commission's responsibilities regarding regulatory changes, there is hereby created the State Fire Commission Advisory Board. The State Fire Commission Advisory Board shall be composed of 7 members. One member shall be the Chairperson of the Fire School Advisory Board, 1 member shall be the Chairperson of the Fire Marshal's Advisory Board, 1 member shall be the Chairperson of the Ambulance Advisory Committee and 1 member shall be the Chairperson of the Delaware Volunteer Firefighter's Advisory Board. Three members shall be public members appointed by the State Fire Prevention Commission. One public member shall be from New Castle County, 1 from Kent County and 1 from Sussex County. Of the initial 3 public members appointed by the State Fire Prevention Commission, 1 must be appointed for a 1-year term, 1 must be appointed for a 2-year term and 1 must be appointed for a 3-year term. Thereafter, all public members shall serve 1-year terms. The Chairperson of the State Fire Prevention Commission shall call the Advisory Board to its first meeting. The Advisory Board shall choose a Chairperson and shall meet thereafter at the call of the Chairperson of the Advisory Board or the Chairperson of the State Fire Prevention Commission.

(a) The State Fire Prevention Commission shall annually, on or before September 30, transmit to the Governor a full report of its proceedings under this chapter and such statistics as it may wish to include therein. It shall also recommend any amendments to the law which in its judgment shall be desirable.

(b) Along with the annual report, the State Fire Prevention Commission shall transmit a financial statement showing all expenditures and income of the State Fire Prevention Commission covering the preceding 12 months, starting July 1 and ending June 30.

(c) In the even-numbered years the State Fire Prevention Commission shall submit to the Budget Commission a budget showing proposed expenditures for the biennium beginning July 1 next succeeding.

(d) The State Fire Prevention Commission shall be given the authority to reimburse volunteer fire companies which incur extraordinary expenses, an amount not to exceed the amount specified in the annual appropriations act, upon request from a volunteer fire company. An "extraordinary expense'' under the provisions of this section shall be defined as an expense for which a volunteer fire company would not normally prepare for in its company budget and is not covered by said company's own private insurance.

§ 6607 Power of State Fire Prevention Commission to authorize new fire companies or substations; resolve boundary disputes; and prohibit cessation of necessary fire protection services.

(a) The State Fire Prevention Commission, with the advice of the Advisory Board set forth in § 6605 of this title, is empowered to promulgate, amend and repeal regulations related to the exercise of State Fire Prevention Commission powers and responsibilities defined in this section.

(1) Except as provided in subsection (c) of this section, the State Fire Prevention Commission shall determine whether any new fire companies or substations shall be authorized in any part of the State. In making such determination the State Fire Prevention Commission shall consider among other things the ability, financial or otherwise, of the company seeking authorization to maintain an effective fire company and the fire protection needs of the area involved. The State Fire Prevention Commission, however, shall not authorize the establishment of a new fire company main station or substation within 4 miles of an existing fire company's main station or substation unless the State Fire Prevention Commission determines that an existing company is not reasonably equipped, manned, organized, financed or disciplined to deliver, or is not actually delivering, adequate fire protection in accordance with recognized safety standards to the area it serves.

(2) Except as provided in subsection (c) of this section, the State Fire Prevention Commission shall have authority to prohibit the suspension of fire protection services in this State by any fire company or substation thereof when the ability, financial or otherwise, of the company or substation seeking to suspend such service does not warrant such suspension. In making this determination the State Fire Prevention Commission shall consider, among other things, the fire protection needs of the area involved, whether the company or substation seeking to suspend fire protection services is inadequately financed, equipped, manned, organized or disciplined, and whether a new fire company should be authorized to deliver fire protection services to the area.

(3) The State Fire Prevention Commission shall have authority, acting on behalf of the State, to enter into agreements to confirm the established geographical boundaries of areas served by all existing fire companies in the State and to resolve boundary disputes between or among such fire companies.

(b) The Delaware Volunteer Firefighters' Association shall designate from its members a 9-member advisory board to advise and make recommendations to the State Fire Prevention Commission in connection with the Commission's responsibilities under this section. The Delaware Volunteer Firefighter's Advisory Board shall consist of the President, First Vice-President, Second Vice-President and the 7 members of the Board of Directors, excluding the immediate past President who serves as a Commissioner, of the Delaware Volunteer Firefighters' Association.

(c) Paragraphs (a)(1) and (2) of this section shall not be applied with respect to any fire company in municipalities with a population greater than 50,000 as established in the official 1980 federal census.

The State Fire Prevention Commission may in its discretion bring an action in the Delaware Court of Chancery to temporarily restrain or enjoin any act or practice which constitutes a violation of an order of the State Fire Prevention Commission or of any provision of this chapter and to enforce compliance with any order of the State Fire Prevention Commission or provision of this chapter.

(a) The State Fire Prevention Commission shall promulgate regulations requiring financial audits of volunteer fire and ambulance companies and the Smyrna and Georgetown American Legion Ambulances and the Mid-Sussex Rescue Squad. The regulations shall include, but not be limited to, specifying the required types of audits, the reporting periods, procedures for reviewing the audits and the processes to be followed in the event a company fails to submit or submits an inadequate audits.

(b) The State Fire Prevention Commission shall have the authority, after a hearing, to impose a civil penalty not to exceed $100 against any volunteer fire and ambulance companies, the Smyrna and Georgetown American Legion Ambulances and the Mid-Sussex Rescue Squad that fails to comply with any regulation promulgated pursuant to subsection (a) of this section. Each day a violation continues may be deemed a separate offense in the State Fire Prevention Commission's discretion. However, in no event shall the total penalties exceed $5,000 per reporting period.

(c) The penalties specified in this section are in addition to and not in lieu of any other penalties provided for under this chapter.

(a) Appeals to the State Fire Prevention Commission may be taken by any person aggrieved by an order or decision of the State Fire Marshal, or the Marshal's Deputy or Deputies, based upon or made in the course of the administration or enforcement of this chapter. Appeals to the State Fire Prevention Commission may be taken by any officer, department, board or bureau of the State and the several counties, cities and political subdivisions thereof affected by an order or decision of the State Fire Marshal, or the Marshal's Deputy or Deputies, in the course of the administration or enforcement of this chapter.

(b) Appeals by any person aggrieved by an order or decision of the State Fire Marshal, the Marshal's Deputy or Deputies, or Assistant State Fire Marshals based upon or made in the course of the administration or enforcement of this chapter or local regulations incorporating the State Fire Prevention Commission Regulations shall be taken to the State Fire Prevention Commission. Appeals by any officer, department, board or bureau of the State and the several counties, cities and political subdivisions thereof affected by an order or decision of the State Fire Marshal, or the Marshal's Deputy or Deputies or Assistant Fire Marshals, in the course of the administration or enforcement of this chapter or local regulations incorporating the State Fire Prevention Commission Regulations shall be taken to the State Fire Prevention Commission.

(c) The time within which such appeal must be made and the effect, form or other procedure relating thereto shall be as specified in regulations promulgated by the State Fire Prevention Commission following notice and public hearings as provided in § 6604 of this title.

§ 6610 Appeals to the State Fire Prevention Commission — Powers upon appeals.

Upon appeals the State Fire Prevention Commission shall have the following powers:

(1) To hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by the State Fire Marshal, or the Marshal's Deputy or Deputies, based on or made in the enforcement of this chapter;

(2) To hear and decide, in accordance with any duly adopted regulation, requests for special exceptions or for interpretation of regulations or for decisions upon other special questions upon which the State Fire Prevention Commission is required by any regulation to pass;

(3) To authorize a variance from particular provisions of the regulations duly promulgated under § 6604 of this title where strict compliance with such provisions would entail practical difficulties or unnecessary hardships, provided such relief may be granted without substantial detriment to the public safety and without substantially impairing the intent and purpose of the regulations promulgated under § 6604 of this title;

(4) All decisions, authorizations or interpretations made by the State Fire Prevention Commission hereunder shall be written and signed by the Chairperson or Vice-Chairperson and filed in the office of the State Fire Marshal, or the Marshal's Deputy or Deputies, within 30 days following the appeal.

(a) Any person jointly or severally aggrieved by any decision of the State Fire Prevention Commission made in the exercise of its appellate function under §§ 6609 and 6610 of this title, or in exercise of its authority decertifying, suspending or otherwise disciplining an emergency medical technician (EMT) under § 6712A of this title, or any officer, department, board or bureau of the State and the several counties, cities and political subdivisions thereof may appeal the final order of the State Fire Prevention Commission to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the party aggrieved by the decision. Upon such appeal the Superior Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29.

(b) Costs shall not be allowed against the State Fire Prevention Commission unless it shall appear to the Superior Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.